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Criminal Law FLASHPOINTS September 2022

Matthew Chivari, Chivari P.C., Chicago
312-975-5732 | E-mail Matthew Chivari

The First Step Act and Intervening Changes of Law or Fact

Passage of the Fair Sentencing Act of 2010, Pub.L. No. 111‑220, 124 Stat. 2372, rectified vast disparities between the sentences handed down for crack cocaine and powder cocaine offenders. While it certainly established some equity, the Fair Sentencing Act did not apply retroactively — benefitting only those who were sentenced of a crack cocaine offense on or after August 3, 2011, the effective date of the Act. Id. In 2011, the United States Sentencing Commission (USSC) took the first steps toward retroactive application of the Act by amending the Federal Sentencing Guidelines (Guidelines) to lower the Guidelines range for crack cocaine offenses, which applied retroactively for some defendants. Congress went a step further with passage of the First Step Act of 2018, Pub.L. No. 115‑391, §404(b), 132 Stat. 5194, under which district courts could implement reduced sentences for offenders serving sentences for certain crack cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offenses were committed.” 21 U.S.C. §841 note.

Since its passage, numerous individuals have sought and received relief under the First Step Act. Although the conditions under which the First Step Act applies are relatively straightforward, inevitably there arise certain cases with fact patterns that serve to confound even the most uncomplicated of laws. Concepcion v. United States, ___ U.S. ___, 213 L.Ed.2d 731, 142 S.Ct. 2389 (2022), is one such recent case.

Concepcion v. United States

On June 27, 2022, the United States Supreme Court rendered its decision in Concepcion, supra, in which the Court considered the issue of whether a district court deciding a First Step Act motion must, may, or may not consider intervening changes of law or fact.

In 2007, Carlos Concepcion pleaded guilty to one count of distributing five or more grams of crack cocaine and was sentenced in 2009 to 228 months (19 years) in federal prison. 142 S.Ct. at 2396. At the time of his sentencing, a 100-to-1 ratio between crack cocaine and powder cocaine offenders was in place. Id. For Concepcion, at the time, an offense involving five or more grams of crack cocaine carried a statutory sentencing range of 5 to 40 years’ imprisonment, whereas 100 times as much powder cocaine was required to trigger the same sentencing range. Id. Additionally, Concepcion qualified as a “career offender” — someone who commits a crime of violence or a controlled substances offense after receiving two prior felony convictions for either of those same crimes. Guidelines §4B1.1(a). Given his career offender status and other applicable enhancements, Concepcion’s total Guidelines range jumped from 57 to 71 months to 262 to 327 months. 142 S.Ct. at 2396.

After his sentencing, new legislation and Guidelines amendments promised to protect Concepcion’s prospects for relief. First, the Fair Sentencing Act eliminated the oppressive disparities between crack and powder cocaine sentences. Id. Then, in 2011, the USSC retroactively amended the Guidelines range for crack cocaine offenses, but this did not apply to Concepcion because of his career offender status. 142 S.Ct. at 2397. In 2018, with passage of the First Step Act, Concepcion finally became eligible for a sentence reduction. Id. The following year Concepcion filed a pro se motion under the First Step Act, arguing that “retroactive application of the Fair Sentencing Act lowered his Guidelines range from 262 to 327 months to 188 to 235 months.” Id. Additionally, Concepcion highlighted evidence of his rehabilitation while in custody, including his successful completion of drug and vocational programming, the development of a sound reentry plan, and his spiritual growth. Id.

The government, while conceding his eligibility for a reduced sentence, ultimately opposed Concepcion’s motion on two grounds. Although in agreement with Concepcion’s calculation of his Guidelines range under the First Step Act, the government pointed out that his original sentence of 228 months fell within the newly determined Guidelines range of 188 to 235 months. The second ground on which the government opposed sentence reduction challenged Concepcion’s assertion of his own rehabilitation. Noting his participation in several programs, the government emphasized several “troubling behaviors” that Concepcion demonstrated while in prison, such as fighting, interfering with staff, and possession of a weapon. Id.

In reply, this time through counsel, Concepcion made two arguments to further support sentence reduction. Foremost, he argued that a vacated prior conviction rendered him no longer career offender eligible, since his remaining convictions were no longer considered crimes of violence that would otherwise have triggered the career offender enhancement. Without the career offender enhancement, Concepcion argued, his Guidelines range would only be 57 to 71 months. Secondly, Concepcion highlighted the evidence of his rehabilitation after sentencing — successful completion of drug and vocational programs, a well-articulated reentry plan, and a letter of support from a Bureau of Prisons chaplain. Id.

In denying Concepcion’s motion, the district court paved a narrow path, reasoning that the changes brought about by the Fair Sentencing Act would leave Concepcion with the same sentence. Id. The district court dismissed consideration of Concepcion’s claim that he no longer qualified as a career offender as outside the scope of First Step Act relief. 142 S.Ct. at 2398. The district court declined to even address the issue of Concepcion’s post-sentence rehabilitation. Id.

The Appellate Court’s Two-Step Inquiry

A divided court of appeals affirmed the district court’s ruling, asserting that the First Step Act established a two-step inquiry. Id. The first step requires the sentencing court to consider only the changes enacted by the Fair Sentencing Act to determine whether resentencing is even warranted. If so, the sentencing court then proceeds to the second step, in which it may exercise its discretion in considering new factual or legal developments to determine how to resentence the movant. The dissent favored a much broader, single-step interpretation of the First Step Act, asserting that district courts have “substantial discretion” that, in Concepcion’s case, would allow them to consider evidence of his rehabilitation in addition to Guidelines amendments. Id. Unfortunately, this only reinforced the split among courts of appeals as to whether a district court, when deciding a First Step Act motion, “must, may, or may not consider intervening changes of law or fact” — the issue taken up by the Supreme Court. Id.

Justice Sotomayor’s Majority Opinion

The Supreme Court ultimately reversed and remanded, holding that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence. 142 S.Ct. at 2405.

In her majority opinion, Justice Sotomayor noted that federal courts have historically exercised broad discretion to consider all relevant information at an initial sentencing hearing, “consistent with their responsibility to sentence the whole person before them.” 142 S.Ct. at 2398. This discretion, as Justice Sotomayor continued, also extends to subsequent proceedings that may modify an original sentence and is constrained only when the Constitution or Congress expressly limits the information that courts may consider. Id. In fact, this legacy dates to colonial times, even preceding our nation’s founding. 142 S.Ct. at 2399. For over two centuries, “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” 142 S.Ct. at 2399, quoting Koon v. United States, 518 U.S. 81, 135 L.Ed.2d 392, 116 S.Ct. 2035, 2053 (1996).

As to whether evidence of a defendant’s rehabilitation since sentencing, specifically, is properly among those intervening changes of fact that may be considered by courts when deciding a First Step Act motion, Justice Sotomayor noted that the Supreme Court previously found it “clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing.” 142 S.Ct. at 2399, quoting Pepper v. United States, 562 U.S. 476, 179 L.Ed.2d 196, 131 S.Ct. 1229, 1241 (2011). See also United States v. Rodriguez, No. 94 Cr. 313 (CSH), 2020 WL 2521551, *5 (S.D.N.Y. May 18, 2020) (considering movant’s “exemplary conduct during a lengthy period of incarceration”). However, district courts also (and equally) consider evidence of violence and rule breaking while in custody. 142 S.Ct. at 2400.

The considerations involved when district courts must calculate new Guidelines ranges during resentencing can be a little more complex. For instance, distinctions can be made between recalculating a Guidelines range based on nonretroactive intervening changes of law and considering such changes as simply informative in the determination of an appropriate sentence. Id., citing United States v. Frates, 896 F.3d 93, 101 – 102 (1st Cir. 2018). District courts may also consider subsequent amendments to the Guidelines as “evidence of society’s judgment of the seriousness of [the movant’s] offense.” 142 S.Ct. at 2400, quoting United States v. Gilmore, 599 F.3d 160, 166 – 167 (2d Cir. 2010). Nonetheless, even when a district court is prohibited from recalculating a defendant’s Guidelines range based on nonretroactive Guidelines amendments, the sentencing court may still “find those amendments to be germane when deciding whether to modify a sentence at all, and if so, to what extent.” Id.

Only the Constitution, or Congress, by way of a statute, can limit a district court’s discretion during initial sentencing or resentencing. Id. In the First Step Act, as Justice Sotomayor made clear, Congress did not break this well-established tradition: “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.” 142 S.Ct. at 2401. Nor does it “so much as hint that district courts are prohibited from considering evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes.” Id. In fact, the only restrictions placed on a district court’s discretion during sentencing in the First Step Act are found in §404(c) — “A district court may not consider a First Step Act motion if the movant’s sentence was already reduced under the Fair Sentencing Act or if the court considered and rejected a motion under the First Step Act.” 142 S.Ct. at 2401 – 2402. As Justice Sotomayor pointed out, neither of those two limitations applied in Concepcion’s case. 142 S.Ct. at 2402.

Further, given that First Step Act movants have accumulated prison records exceeding a decade, “[t]hose records are naturally of interest to judges authorized by the First Step Act to reduce prison sentences or even to release movants immediately.” 142 S.Ct. at 2403. Aspects of those records would, also naturally, contain both post-sentence evidence of rehabilitation and evidence of violence or other prison infractions, or the lack thereof, all of which may be probative. Id.

As to a district court’s responsibility to explain its sentencing decisions, Justice Sotomayor summarized the Court’s reasoning thusly:

Put simply, the First Step Act does not require a district court to accept a movant’s argument that evidence of rehabilitation or other changes in law counsel in favor of a sentence reduction, or the Government’s view that evidence of violent behavior in prison counsels against providing relief. Nor does the First Step Act require a district court to make a point-by-point rebuttal of the parties’ arguments. All that is required is for a district court to demonstrate that it has considered the arguments before it. 142 S.Ct. at 2404 – 2405.

Concepcion’s Impact Moving Forward

Although Concepcion resolves the circuit split pertaining to the issue of whether intervening changes of law or fact can be considered, the scope of such changes is potentially vast and subsequent cases are likely to test the bounds of this scope and the nuances of how specific changes may weigh in each case. Similarly, considering evidence of post-sentence rehabilitation and evidence of violence or other prison infractions alone, the trends in what constitutes adequate evidence to either grant or deny relief in each circuit will begin to steer First Step Act movants’ fate in their respective jurisdictions.

For more information about criminal law, see JAMES J. AHERN ON DUI CASELAW (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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